' MUNIB AKHTAR, J.--- This petition arises out of the election to a National Assembly seat, NA-200, in the General Election of 2013. Both the petitioner and the respondent No,2 were contesting candidates and polled, respectively, the highest and second highest number of votes. The petitioner was accordingly declared the returned candidate by the Election Commission of Pakistan ("ECP", the respondent No,1).
2. Being aggrieved by the electoral result, the respondent No,2 has filed an election petition under section 52 of the Representation of the People Act, 1976 ("1976 Act"), before the concerned Election Tribunal ("Tribunal") constituted under section 57. The election petition is still pending adjudication.
The petitioner is of course, the main contestant to the election petition. (For convenience, and in order to avoid confusion, 'the petitioner will hereinafter be referred to as the "returned candidate", and the respondent No,2 as the "contesting candidate".) The returned candidate filed an application under section 63 of the 1976 Act in terms of clause (a) thereof, seeking to have the election on the ground that it was not compliant with sections 54 and 55. By means of an order dated 1-8-2013, the. Tribunal was pleased to dismiss this application. The contesting candidate had filed a long list of witnesses along with his election petition, but in the event examined only two. He filed an application under section 64 of the 1976 Act read with section 151, C.P.C., seeking to have the ballot papers and counter-foils of the votes cast at 59 specified polling stations sent to NADRA for verification of the thumb-impressions, the allegation being that bogus votes had been cast at those polling stations in favour of the returned candidate. By another order, also dated 1-8-2013, the Tribunal was pleased to allow this application, directing that the "Photo Electoral Roll of the 59 Polling Stations be immediately called from Returning Officer concerned and same be referred to NADRA for verification of thumb-impressions of the voters who cast their votes at these 59 Polling Stations".
3. The returned candidate has challenged the aforesaid orders by this petition under Article 199 of the Constitution. Both the impugned orders are interlocutory in nature since neither finally disposes of the election petition. The first question that naturally arises is whether the present petition is maintainable. Does the High Court have jurisdiction to consider the impugned orders in view of Article 225 of the Constitution, and the various judgments of the Supreme Court on the issue? Since a number of decisions will have to be considered, it will be convenient to set out in one place the manner in which the decisions are cited in this judgment:--- {{TABLE}} Judgment How cited Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 (4-Member Bench)
Javaid Hashmi Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others 1994 SCM R 1299 (5-Member Bench) Ghulam Mustafa Jatoi Muhammad Arif Hussain v. Rao Sikandar lqbal and others PLD 2008 SC 429 (3-Member Bench) Muhammad Arif Hussain Nayyar Hussain Bukhari v.
District Returning Officer and others PLD 2008 SC 487 (3-Member Bench) Nayyar Hussain Bukhari Muhammad Husain Babar v. Election Commission of Pakistan and others PLD 2008 SC 495 (3- Member Bench) Muhammad Husain Babar Lt. -Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 (5-Member Bench) Salahuddin Tirmizi {{TABLE}} Aftab Shahban Mirani v. Muhammad Ibrahim and others PLD 2008 SC 779 (5-Member Bench) Aftab Shahban Mirani Federation of Pakistan v. Nawaz Sharif PLD 2009 (5-Member Bench) Muhammad SC 644 Muhammad Nawaz Sharif {{TABLE}} ' Article 225 of the Constitution provides as follows:--- "No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Mailis-e- Shoora (Parliament)."
5. Learned counsel for the returned candidate submitted that Article 225 could be regarded as falling into two "parts". The first part comprised the words "No election to a House or a Provincial Assembly shall be called in question". Learned counsel submitted that this part established the scope of the exclusion created by Article 225. The second part (the remainder of the Article) established how the election was to be challenged. Learned counsel submitted that the bar created by the first part did not apply to a returned candidate. This was so for the obvious reason that 'no successful candidate would challenge his own election. Thus, the bar did not at all apply to the present petitioner. The present petition was therefore maintainable under Article 199 of the Constitution.
6. Learned counsel further submitted that though Article 225 was an express bar, it was not absolute. The various decisions of the Supreme Court recognized that in certain circumstances, the High Courts could exercise jurisdiction under Article 199 even in election matters that might otherwise be regarded as falling within the ambit of Article 225. In this regard, learned counsel relied in particular, and most strongly, on Nayyar Hussain Bukhari. Reliance was also placed on Ghulam Mustafa Jatoi, Muhammad Arif Hussain and Muhammad Husain Babar.
7. Learned counsel submitted that it was clear from the relevant passage in Ghulam Mustafa Jatoi (considered below) and other cases, that a distinction had been drawn between disputes during the process of the election, and those which arose after the process was complete. In respect of disputes arising during the process of election there were several remedies available under the 1976 Act at various stages. However, during the post-election stage, there was essentially only one remedy available, namely the filing of an election petition under section 52. It was contended on this basis that the threshold of the bar or exclusion contained in Article 225 ought to be regarded as being higher in respect of disputes arising during the election process as compared with disputes in the post-election stage. Even on this basis, the present petition was maintainable and the impugned orders amenable to challenge in this Court under Article 199.
8. Learned counsel also placed reliance on certain observations in Jamal Shah v. Election Commission of Pakistan PLD 1966 SC 1, and the observations of Nasim Hasan Shah, J. (as he then was) in his dissenting judgment in Javaid Hashmi. Learned counsel emphasized that no alternate remedy was available to the. Petitioner (i,e,, the returned candidate) against the impugned orders.
An appeal to the Supreme Court under section 67(3) of the 1976 Act lay against a "final" decision, i,e,, only against a decision which came within the ambit of subsection (1). The impugned orders clearly did not fall within the subsection. It was contended that the present petition was therefore maintainable.
9. Learned counsel for the contesting candidate submitted that the petition was not maintainable.
He submitted that once an election petition had been filed, then the bar contained in Article 225 became absolute and the High Court could not entertain a petition under Article 199. Learned counsel further contended that even though an appeal ordinarily lay to the Supreme Court under section 67(3) only against a "final" decision, an appeal could also be preferred if the order of the election tribunal suffered from a jurisdictional error. In this regard, reliance was placed on Abdul Ghani and another v. Election Tribunal and others 1999 SCM R 1. Thus, an alternate remedy was available against the impugned orders, since the returned candidate contended that the impugned orders suffered from jurisdictional errors. However, learned counsel emphasized that this submission was on the legal plane and in the present case, the impugned orders did not suffer from any illegality or jurisdictional error. It was contended on this basis that the present petition was not maintainable, and ought to be dismissed as such.
10. Learned counsel for the respective parties also made full and detailed submissions on the legality (or otherwise) of the impugned orders, i,e,, on the merits of the dispute. However, without intending any disrespect and for reasons that will presently become clear, we are not recording those submissions, and will confine ourselves to a consideration of whether this petition is maintainable. We may note that written submissions were also filed by both sides.
11. We have carefully considered the issue of maintainability in light of the submissions made by learned counsel. Before proceeding further, one point may be noted. The 1976 Act uses the term "Election Tribunal" in three distinct senses, even though there is an (exhaustive) meaning given to "Tribunal" in section 2(xxv). As is well-known, once the nomination papers of prospective candidates have been accepted or rejected by the Returning Officer, there is a right of appeal against such decision under section 14(5) to an appellate forum. This appellate body, which comprises of nominated High Court judges appointed by the Chief Election Commissioner ("CEC")
(with the President's approval) is referred to as a "Tribunal" in the subsection, and is commonly known as an "Election Tribunal". The second sense is that of a Tribunal constituted under section 57 to hear election petitions presented under section 52. This is the (exact) sense in which the term is defined in section 2(xxv) and of course the Tribunal whose orders are impugned before us is of this nature. The third sense relates to the ECP itself. Section 103AA provides that the ECP may, in the circumstances specified in subsection (1), declare the "poll in any constituency" to be void, and may exercise the jurisdiction so conferred (subject to a certain time limitation) notwithstanding that there has been a declaration of a returned candidate for that constituency (subsection (2)).
Subsection (3) provides that when the ECP exercises jurisdiction under subsection (1), it "shall be deemed to be a Tribunal to which an election petition has been presented". The nature and effect of the deeming provision contained in section 103AA has been considered in some detail in Aftab Shahban Mirani.
12. We begin with Javaid Hashmi. The dispute arose out of a bye-election to a National Assembly seat from the Punjab, NA 120. At that time (1989) the Federal Government and the Provincial Government were formed by different political parties/groups, which were seriously at odds. Mr. Hashmi was the candidate of the coalition that formed the Provincial Government. After the election schedule was announced, the Returning Officer, as required under the 1976 Act, prepared the list of the polling staff, which was approved, again as required by statute. Thereafter, a complaint was made by the Federal Government to the ECP that the polling staff nominated came predominantly from agencies and departments controlled by the Provincial Government. An apprehension was, expressed that in such circumstances, the fairness and transparency of the election could come into question and it was requested that the position be "balanced" and polling staff also nominated from other entities, bodies and departments. The ECP issued certain directions in this regard, with the result that the Returning Officer changed a large number of the polling staff from the earlier, approved list. Mr. Javaid Hashmi felt aggrieved by this change, and challenged it in the Lahore High Court by a petition under Article 199. At the same time, he also challenged the issuance of several thousand identity cards by the concerned federal authority in a manner that was alleged to favour the supporters of the opposing candidate. The Lahore High Court restored the originally approved polling staff, declaring the changes subsequently made to be unlawful. At the same time, certain directions were given regarding the distribution of the newly-issued identity cards. Being aggrieved by the aforesaid decision, the ECP appealed to the Supreme Court as did the federal authority that was charged with the duty of issuing and distributing identity cards. The two petitions (for leave to appeal) were listed together and heard by a 4-Member. Bench. The leave petition as regards the identity cards was unanimously dismissed, and it raised no issues as are, relevant for present purposes. The appeal by the ECP, which is directly relevant, was allowed by a learned majority (Muhammad Haleem, CJ and Shafiur Rehman and Ali Hussain Qizalbash, JJ.). Nasim Hasan Shah, J. Dissented, and would have dismissed the leave petition filed by the ECP.
13. The majority judgment (authored by the learned Chief Justice) examined in great detail the meaning of the word "election" after reviewing (inter alia) a number of authorities, both Pakistani and Indian. It was held that as used in Article 225, it had to be broadly construed, and applied as meaning "the entire process consisting of several steps taken for its completion which have a bearing on the result of the process" (pg. 416). This process went up to the stage of the declaration of the returned candidate. Thus, the stage after such declaration was the post-election stage. It was held as follows in the majority judgment (pg.417):--- "The scheme of the electoral laws and conduct of election accordingly appears to be that any matter which has the effect of vitiating the election process should be brought up only at the appropriate stage in an appropriate manner before the Election Tribunal and should not be brought up at an intermediate stage before any Court as otherwise Article 225 of the Constitution would be deprived of its meaning and content."
' It was further observed as follows (pg. 422): "Here I may point out that the exercise of power under Article 199 cannot be placed on any higher footing than that emanating from Article 225 of the Constitution; and that while the power under Article 199 exercisable by the High Court is "subject to .The Constitution" whereas there is no such limitation in Article 225. This Article by its language creates an independent jurisdiction for the decision of election disputes under the law and its contents, therefore, should be given the fullest meaning irrespective of anything contained in any other Article. More particularly so as it is an essential part of parliamentary jurisdiction which under the law entrusts election disputes for decisions to the Election Tribunal and in appeal to the Supreme Court whose decision is final both on questions of law and fact,"
' With regard to the jurisdiction of the Supreme Court under section 67(3) of the 1976 Act, as compared to the manner in which jurisdiction is to be exercised by the High Courts under Article 199, it was observed as follows (pg. 423):--- "The Supreme Court can in the exercise of its appellate power correct all legal errors or defects or disabilities and its powers are wider in scope than the powers exercised by the High Court under Article 199 to correct the defects of the kind mentioned above."
' It was concluded as follows (idem., emphasis supplied): "Accordingly what is intended to be achieved by the exercise of the power under Article 199 is achieved by the exercise of the appellate power by the Supreme Court in an appeal against the decision of the Tribunal not at an intermediate stage but only after the election is over. There is, therefore, no scope of any interference by the High Court under Article 199 of the Constitution to interfere with the process of election at an intermediate stage or question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election.
' As regards the case before it, the majority judgment held as follows (pg. 427):--- 'The relief claimed in the petition admittedly impugns the change of the polling personnel as without lawful authority which the' High Court could not in the exercise of extraordinary jurisdiction grant it having regard to Article 225 of the Constitution and the [1976] Act."
14. In his dissenting judgment, Nasim Hasan Shah, J. Stated the question before the Court as follows (pg..429):--- "The question which arises in these cases and it is of fundamental importance, is whether the provisions of Article 225 prevail against the provisions of Article 199 to the extent that a blanket cover is provided to all litigative challenges in respect of every kind of order passed in the course of the election process because the provisions of Article 199 are subject to the Constitution, including Article 225?"
' The question was answered as follows (idem.): "I cannot, speaking with utmost respect, agree with the view that since Article 225 by its mandate creates an independent jurisdiction (an Election Tribunal) for redress of grievances in regard to election disputes and the Constitution intends that all questions of law and facts must be decided by it, in the exercise of that jurisdiction; redress of every grievance relevant to an election dispute must perforce be sought by an election petition, after the process of election is over. In my humble opinion such width and amplitude cannot be read into the provisions of Article 225. I am, on the other hand, of the opinion that any decision or order made by a functionary charged with the conduct of elections which is made in excess of his authority, being coram non judice, would still be subject to the control of the High Court in exercise of its jurisdiction under Article 199. The legislature expects every statutory authority to act within the limits of the law and if any such authority steps out of these limits or refuses to function as the law requires him to function and he proceeds to make an order not within the limits of the law; such an order can be declared under Article 199 of the Constitution as without lawful authority and to be of no legal effect."
' His Lordship recognized the need for completing the election process expeditiously so that the constitution of the relevant House/Assembly could be "speedily and distinctly known", and acknowledged the concern that "interference by the High Court at the intermediate stage can interrupt this process" (pg. 429). He however, pointed out that the exercise of jurisdiction under Article 199 was discretionary, and expressed the view that the High Court could "... Be expected in the sound exercise of its discretion not to interfere at the intermediate stage unless it is absolutely essential to do so in the interest of justice, maintenance of purity of elections, supremacy of law and to prevent arbitrariness. The High Court mindful of its duty in this respect can legitimately be expected to desist from interfering in the election process, unless it is entirely imperative...." (idem.)
' Referring to Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26, his Lordship concluded as follows (pp. 429-30; emphasis supplied): "While I agree that it is most desirable that the election process should not be interrupted during the intermediate stage, I cannot agree that to avoid the complications of any such interference a blanket ban should be read into Article 225 to every litigative challenge made to every kind of illegal order passed by an election authority.... Accordingly, would, therefore, hold that orders passed even by Election Authorities, which are outside the limits of the law, are not immune from challenge and correction, by the High Court under Article 199. Undoubtedly, it doing so the High Court will exercise its jurisdiction with extreme circumspection, in full consciousness of the normal rule that it should not interfere with the process of the elections at an intermediate stage, but leave it to the Tribunal to correct all errors committed after the election is over."
15. The next case that requires consideration is Ghulam Mustafa Jatoi.. The dispute arose in relation to NA-158 in the General Election of 1993. Mr, Ghulam Mustafa Jatoi was a candidate for this seat, and his nomination papers were accepted by the Returning Officer. No appeal was filed against this acceptance, and the period fixed for filing appeals to the appellate body (i,e,, the "Election Tribunal" under section 14(5)) expired. Thereafter, the Returning Officer of his own motion and without giving any opportunity of hearing, rejected Mr. Jatoi's nomination papers on the ground that he was disqualified from contesting the election. Being aggrieved by this order, Mr. Jatoi filed a petition in this Court under Article 199. The petition was however dismissed as not maintainable by reason of Javaid Hashmi, and Mr.. Jatoi appealed to the Supreme Court. A 5-Member Bench, after a detailed review of the relevant legislation and the authorities (including of course, most importantly Javaid Hashmi itself) concluded as follows (pg. 1321; emphasis supplied): "The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution.
However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify, that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove."
' Since Mr. Jatoi had no legal remedy available (the time for filing an appeal against the rejection of nomination papers had already expired) and the impugned order was patently illegal (no opportunity of hearing had been granted) and the effect was to "defranchise" him (he could not contest the election), the appeal was allowed and the impugned order set aside.
16. In our respectful view, a number of points arise from the cited passage. The Supreme Court emphasized that it was not overruling Javaid Hashmi (as could have happened, since Ghulam Mustafa Jatoi was heard by a larger Bench). In our respectful view, the cited passage can be regarded as. Being, and establishing, an exception to the general rule laid down in Javaid Hashmi.
The exception was carefully and narrowly crafted. It appears to comprise of the following elements:
(a) the impugned order had to be that of an election functionary; (b) the aggrieved person had to have no legal remedy available against the order, whether during the process of election or after it had been completed; and (c) the impugned order had to be patently illegal/without jurisdiction and it had to have the effect of "defranchising" the petitioner. If these elements were found to exist, then a petition under Article 199 could be maintainable. Insofar as the second element is concerned, in our respectful view, the "process of 'election" must be regarded (in light of Javaid Hashmi) as having been completed when a declaration is made of the returned candidate. The stage thereafter would be the "post-election" phase. As is obvious, the present petition and the orders impugned before us fall in the second or "post-election" phase. Insofar as the first element is concerned, a question could arise as to who can be regarded as an "election functionary"? Finally, and most importantly in our respectful view, is the question that arises in relation to the third element: is the "and" between "patently illegal/without jurisdiction" and "the effect of which is to defranchise a candidate" to be read conjunctively or disjunctively? It will be appreciated that if the "and" is read as such (i,e,, conjunctively), then the scope of the exception is narrower than if it is read disjunctively (i,e,, effectively as an "or"). In our respectful view, the subsequent decisions of the Supreme Court, considered below, must be examined while keeping the foregoing points in mind.
17. The next judgments to be considered are a series of five decisions, all given in 2008. It is not without interest to note that although decided by different Benches, the learned author-Judge in all five was the same. Chronologically, the first decision is Muhammad Arif Hussain, handed down on 10-1-2008. The case arose out of the General Election of 2008, in connection with NA-144. The petitioner filed his nomination papers, to which an objection was taken that he was not a graduate and hence not qualified to contest the election. The objection was sustained and the nomination papers rejected: The petitioner exercised his right of appeal under section 14(5) and the appellate body (i,e,, tribunal) allowed the same, thus enabling him to contest the election. Against this decision, the opposing candidate filed a petition under Article 199 in the Lahore High Court, which was allowed. Thus, the petitioner became disentitled to contest the election. He therefore preferred an appeal to the Supreme Court. It was observed as follows (pg. 436; emphasis supplied):---- "This is correct that in the normal circumstances, the election dispute is challengeable only by an election petition on completion of election process and filing of writ petition at an intermediate stage, may not be justified but there is distinction between Articles 225 and Article 199 of the Constitution. The power of Election Tribunal constituted under Article 225 is confined to the extent of election dispute which may also include qualification and disqualification of a candidate whereas Article 199 of the Constitution is not as such controlled by Article 225 of the Constitution in all matters at all stages of election rather the High Court in exercise of its constitutional jurisdiction may in suitable cases, exercise all powers to correct a legal error, defect or disability and has much wider power to that of the power of the Tribunal constituted under Article 225 of the Constitution of Islamic Republic of Pakistan.... [T]he jurisdiction of High Court under Article 199 is not ousted for the mere reason that the matter can be brought before the Election Tribunal at an appropriate stage.
There is no departure to the rule that there is limited scope of interference of the High Court under Article 199 in an election matter at an intermediate stage, which can be decided by the Election Tribunal but this rule, as such, may not be applicable to be pressed into service to permit a person to enter in the process of election who does not fulfil requisite qualification, therefore, the interference of the High Court during the process of scrutiny of nomination papers in a case in which disqualification of a person is floating on the surface of record is not objectionable instead non-interference of High Court in such a case in its constitutional jurisdiction, would amount to allow a person who is not -qualified to be elected or become Member of the Parliament to contest the election and disturb the whole process. Article 225 of the Constitution, provides that no election to the House of Parliament or Provincial Assembly can be called in question except through election petition before the Tribunal constituted thereunder but the rule envisages therein may not be invariably applicable to all situations at all stages, rather in exceptional case High Court may under Article 199 of the Constitution, interference to uphold the constitutional mandate."
' Reference was then made to Javaid Hashmi, and it was observed as follows (pg. 437; emphasis supplied): "The controversy in the said case related to the appointment of Presiding Officer, Assistant Presiding Officer, Returning Officer and the High Court taking cognizance under Article 199, declared the appointments of polling staff made by the Returning Officer illegal and Returning Officer was directed to make fresh appointments in consultation with District Returning Officer. The interference in the matter of appointment of polling staff was certainly an administrative affair of the election process which was within the exclusive domain of Election Commission and similarly a dispute concerning with the election would definitely be subject-matter of election petition whereas the question relating to the qualification and disqualification of a person would essentially be a prerequisite to enter into process of election and if a person is not qualified to contest the election, the interference of the High Court against the order of acceptance of his nomination papers would not, be in conflict to the provisions of Article 225 of the Constitution. The power under Article 199 of the Constitution no doubt can be placed on higher footing to that of power emanating from Article 225 of the Constitution and notwithstanding the fact that two Articles have independent scope, the power of the High Court under Article 199 is not curtailed by the mere fact that question of law brought before the Court directly or indirectly related to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the point involved therein."
' The Supreme Court concluded by observing (idem.): "The orders passed by the Election Authorities beyond the scope Of law are not immune from challenge and correction by the High Court under Article 199 of the Constitution and High Court in doing so, must exercise jurisdiction subject to normal rule therefore no hard and fast rule can be made that what type of errors and actions of election authorities are immune from challenge before the High Court at an intermediate stage and in what type of error and action, the interference is possible rather it depends upon the,facts of each case, that what type of dispute is brought before the High Court at an intermediate stage and in the light thereof High Court has to decide the question of its jurisdiction."
' On the facts, it was concluded that the petitioner's disability to contest the election (i,e,, the fact that he was not a graduate) stood established. His leave to appeal petition was accordingly dismissed.
18. Although Ghulam Mustafa Jatoi was cited before the Court (see at pg. 434), it was not, as such, considered. The decision in Muhammad Arif Hussain was that of a 3-Member Bench. Ghulam Mustafa Jatoi was, as noted above, decided by a 5-Member bench, and expressly affirmed the rule laid down in Javaid Hashmi. For this reason, in our respectful view the observations in Muhammad Arif Hussain ought to be regarded as an application of the exception stated in Ghulam Mustafa Jatoi to the general rule laid down in Javaid Hashmi. When so considered, the following points emerge. Firstly, it is to be noted that the decision impugned before the Lahore High Court was that of the appellate forum, i,e,, an "Election Tribunal" in the first of the three senses noted in para 11 herein above. This indicates that the words "election functionary" used in the first element of the exception (see para 16 above) are to be construed broadly so as to cover all forums and authorities constituted or nominated by the ECP (or the CEC) as well as the ECP itself and its servants and employees. Secondly, in our respectful view Muhammad. Arif Hussain necessarily leads to the conclusion that the "and" in the third element of the exception is to be read disjunctively and not conjunctively. This is so because the decision of the. Election Tribunal (i,e,, appellate body) had the effect of "enfranchising" the petitioner, i,e,, enabling him to contest the election. If the "and" in the third element in the exception were to be read conjunctively, then the petition before the Lahore High Court would not have been maintainable. But that of course, was not the conclusion reached by the Supreme Court, which affirmed the decision of the High Court.
19. The next decisions to be considered are Nayyar Hussain Bukhari and Muhammad Husain Babar.
As noted above, both decisions were relied upon by learned counsel for the present petitioner, with particular emphasis being laid on the former decision. These two decisions were handed down by the same learned 3-Member Bench (though different from the one that decided Muhammad Arif Hussain), and were announced on 13-1-2008 and 12-1-2008 respectively. The relevant facts of both cases were rather similar. In both, the petitioner before the Supreme Court was a candidate for the concerned constituency, and when the results were being tallied, asked for a recount under section 39(6)(a) of the 1976 Act. Briefly stated, this enables the Returning Officer, when consolidating the results obtained from the various polling stations, to order a recount on a request or challenge by a candidate if "satisfied that the request or challenge is reasonable". In both cases, the request was turned down, and this refusal was challenged in the High Court concerned. Each High Court dismissed the petition, leading to appeals to the Supreme Court. Since the decisions are essentially on the same footing, it will be convenient to refer only to Nayyar Hussain Bukhari. The Supreme Court considered the various authorities (including Ghulam Mustafa Jatdf), but principally referred to Muhammad Arif Hussain, which had of course, been decided only a few days earlier. The relevant passages from the latter judgment were extensively reproduced (see pp. 491-494). We may respectfully note that the fact situation in Muhammad Arif Hussain was quite different from that in Nayyar Hussain Bukhari and Muhammad Husain Babar, It was concluded as follows (Nayyar Hussain Bukhari at pg. 494): "8. In the light of the judgment of this court referred above [i,e,, Muhammad Arif Hussain], it is difficult to agree with the proposition that in all election matters at all stages, the jurisdiction of the High Court under Article 199 of the Constitution or that of Election Commission of Pakistan, a Constitutional forum is completely ousted by virtue of Article 225 of the Constitution. We therefore, hold that Election Commission of Pakistan can conveniently take notice of an irregularity/illegality committed during the process of election in an appropriate case in exercise of its powers under section 103 read with section 103-AA of Representation of the People Act, 1976. Similarly the High Court in a suitable case can interfere in the order passed by the election authorities during the election process in its constitutional jurisdiction under Article 199 of the Constitution."
(The passage in Muhammad Husain Babar to the same effect is para 8 at pg.
502.) It is also of importance to note that the Supreme Court did not, as such, allow either appeal (technically, leave petition). In Nayyar Hussain Bukhari it concluded as follows (pg. 494): "10. Be that as it may, adverting to the question relating to the recounting of ballot papers by the Returning Officer under section 39 of the Representation of the People Act, 1976, and under section 103-AA of the ibid Act by the Election Commission of Pakistan, we find that the application of the petitioner in this behalf was not considered in proper exercise of jurisdiction and similarly the High Court dismissed the writ petition in a perfunctory manner, therefore, the petitioner may either approach the Election Commission of Pakistan afresh under section 103-AA of Representation of the People Act, 1976, or avail the remedy of election petition under section 52 of the ibid Act. In view of the above, notwithstanding the judgment of the High Court and the order passed by Returning Officer as well as Election Commission of Pakistan, we direct that subject to all just exceptions, the concerned forum to be chosen by the petitioner, shall decide the matter quite independently on its own merits without being influenced by the orders assailed before us or by this order and also at the first instance, will decide the matter relating to the recounting of the ballot papers as preliminary issue within the possible short time."
' Muhammad Husain Babar was disposed off in the following terms (pg. 502): "9. The grievance of the petitioner, notwithstanding the question of jurisdiction of the election authorities and the High Court, was confined only to the extent of consolidation of result and the recount of the rejected votes, therefore, we without commenting upon the merits of the case in either way, dispose of this petition with direction that if the petitioner avails the remedy of election petition under section 52 or the Representation of the People Act, 1976, before the Election Tribunal established in terms of Article 225 of the Constitution, the Tribunal at the first instance will consider the question relating to the recount or count of rejected votes, as the case may be as preliminary issue and without decision of the same in possible short time, will not proceed on merits. With the above observation, this petition stands disposed of."
20. In our respectful view, the manner in which the petitions were disposed off is crucial. The observations made in the two decisions ought to be read in light of what was actually decided.
When so read, in our respectful view the Supreme Court simply applied the general rule laid down in Javaid Hashmi. This is so because in the end ("be that as it may" and "notwithstanding the question of jurisdiction of the Election Authorities and the High Court"), it directed that the matter be considered by the Election Tribunal (or, in one case, the ECP under section 103AA, as the case may be, where it s also deemed to be an "Election Tribunal"). The Court gave certain directions but that was only for the recounting exercise to be treated, and decided, as a preliminary issue. The decision itself was to be of the Election Tribunal alone. Keeping the foregoing in mind, in our respectful view, the observations in the two decisions, which were relied upon by learned counsel for the present petitioner, ought to be regarded as an explication of the exception stated in Ghulam Mustafa Jatoi to the general rule laid down in Javaid Hashmi. This is so also for the reason that Nayyar Hussain Bukhari and Muhammad Husain Babar were decisions of a 3-Member Bench. We again draw attention to the third element of the exception. (see para 16 hereinabove). Now, a refusal to recount the ballot papers under section 39(6)(a) is hardly tantamount to a "defranchising" of the candidate who makes the request or challenge: it does not disentitle him from contesting the election, which in any case has already taken place. In our respectful view therefore, Nayyar Hussain Bukhari and Muhammad Husain Babar ought to be regarded as again confirming that the "and" in the third element of the exception is to be read disjunctively and not conjunctively.
21. The next two decisions that require consideration are Salahuddin Tirmizi and Aftab Shahban Mirani. These were handed down on the same day (30-4-2008) by the same learned 5-Member Bench. Since the facts and issues involved were similar, and Aftab Shahban Mirani was clearly the lead decision, it will be convenient to refer in detail only to this judgment. The relevant facts may be briefly stated. Both cases arose out of the General Election of 2008. In each, the losing candidates in certain constituencies applied to the ECP under section 103AA for re-polling at some of the polling stations. In Salahuddin Tirmizi there was also an application of this nature moved by some of the voters, who stated that they had been unable to cast their votes on account of the roads being blocked because of a landslide. In this case, after some protracted litigation, the details of which are not relevant, the ECP directed re-polling in some of, the polling stations. The petitioner filed a petition under Article 199 in the Peshawar High Court seeking a re-poll for the entire constituency.
This petition was dismissed, and the petitioner appealed to the Supreme Court In Aftab Shaban Mirani, the ECP directed that re-polling be held in some of the polling stations. The candidates who polled the highest number of votes filed petitions, in this Court, which wee allowed and the order of the ECP set aside. The petitioners appealed to the Supreme Court.
22. In Aftab Shahban Mirani, one of the questions formulated by the Court, as requiring consideration was as follows (pg. 809): "What is the scope of powers of Election Commission of Pakistan under Articles '118 and 219 of the Constitution read with section 103-AA of Representation of the People Act, 1976?"
' It was observed as follows (pg. 813): "In consequence to the above discussion, we hold that the scope of interference of the High Court in its jurisdiction under Article 199 of the Constitution in election cases is limited only to the extent of matters which do not exclusively fall within the ambit of jurisdiction of Election Tribunals or Election Commission of Pakistan or in respect of the orders which are coram non judice, without jurisdiction or mala fide. The interference of the High Court in the orders passed by Election Commission of Pakistan in discharge of its duty in terms of Articles 218 and 219 of the Constitution read with sections 103 and 103-AA of Act, 1976, in the normal circumstances, is not justified."
' The Supreme Court then took up the next question (idem.): "The next question for examination relates to the power of Election Commission of Pakistan under sections 103 and 103-AA of Representation of the People Act, 1976 and the interpretation of these provisions in the light of Article 225 read with Articles 218(3) and 219 of the Constitution and section 52 of the Representation of the People Act, 1976."
' It was observed as follows (pp. 813-4; emphasis supplied): "The power of Election Commission of Pakistan under section 103-AA is entirely independent to the power to be exercised in an election petition by the Election Tribunal established under section 52 of Act, 1976, in terms of Article 225 of the Constitution, therefore, the contention of the learned counsel for the respondent that power of the Commission under sections 103 and 103-AA of Representation of the People Act, 1976 is subject to Chapter VII of the said Act as the Commission by virtue of subsection (3) of section 103-AA of Act, 1976 has to perform its functions as Tribunal, has no substance. The Commission, despite having been declared as Tribunal under section 103- AA(3) of the Act, is empowered to adopt any procedure in the proceedings of summary inquiry before it and is not bound to follow the procedure of Tribunal or record the evidence and hold a regular inquiry. The additional power of Tribunal given to the Commission under subsection (3) of section 103-AA ibid would not change the status, power and functions of the Commission."
' It was also observed that the power conferred by section 103AA(1) to declare a re-poll for the whole constituency included the power the order a re-poll for only some of the polling stations (pg.
814) This point was re-emphasized (see at pp.815 and 817) and it was concluded as follows (pg 818): "In view of above discussion we hold that Chapter X as well as sections 103 and 103-AA of Representation of the People Act, 1976 are entirely independent to section 52 of the Act and the Commission before or after issue of notification of result of election, may exercise jurisdiction to entertain a complaint on the grounds mentioned therein and may continue to exercise the power within 60 days after official announcement of result of election whereas an election petition can be filed within 45 days of the publication of notification of result and election petitioner can take all these grounds which were taken in the application under section 103-AA of 1976 Act before the Election Commission and thus jurisdiction of Commission to some extent is concurrent with the Tribunal without any conflict."
' On the facts of each case, the Supreme Court concluded that the orders made by the ECP did not suffer from any illegality or material irregularity as would warrant correction by the Court.
Accordingly, the decision of this Court setting aside the order of the ECP was set aside, with the result that the appeal in Aftab Shahban Mirani was allowed. The decision of the Peshawar High Court not to set aside the order of the ECP was upheld, with the result that the leave petition in Salahuddin Tirmizi was dismissed.
23. In our respectful view, the ECP, while exercising jurisdiction under section 103AA, is an "Election Tribunal" in the third of the three senses noted in para 11 hereinabove. The Supreme Court has clearly observed that when acting as such, the ECP is exercising a jurisdiction independent and different from that of an election tribunal constituted under section 57 for trying an election petition under section 52. That of course is the matter with which we are concerned. In our respectful view therefore, the decisions in Aftab Shahban Mirani and Salahuddin Tirmizi are not, as such, of direct relevance to the issue of maintainability in the specific context as arises before us.
24. The final decision that requires consideration is Muhammad Nawaz Sharif. By this judgment a number of matters (most relevantly, certain review petitions) were disposed of. The Supreme Court formulated a number of issues that required consideration, and two of these are relevant for present purposes (pp. 680-81): "(iii)Whether after the order of the Chief Election Commissioner declaring the appeal as deemed to have been rejected in terms of section 14(6) of the Act, were the respondents ... Left with no alternate remedies in terms of sections 52 and 76-A of the Act to have invoked writ jurisdiction under Article 199 of the Constitution and whether the non-consideration of the import of section 76-A of the Act is not an error apparent on the face of record?
(iv) Whether in the facts and circumstances of this case could an election dispute be raised and order passed with jurisdiction (dated 1-6-2008) be reversed by invoking Article 199 of the Constitution and whether the judgment under review is violative of the law laid down by this Court in [Javaid Hashmi]. [Ghulam Mustafa Jatoi]. Ayatullah Dr. Miran Liaquat Hussain v. Election Commission of Pakistan Islamabad and another (PLD 2005 SC 52) and Aftab Shahban Mirani v.
President of Pakistan and others (1998 SCM R 1863)?"
' These two issues were taken up together. After considering the relevant provisions of the 1976 Act and various decisions of the Supreme Court, it was observed as follows (pg. 696; emphasis supplied): "After the judgment of Javed Hashmi's case (ibid), this Court had provided a limited window in writ jurisdiction under Article 199 of the Constitution to challenge an order passed by a functionary of the Election Commission during currency of the election process or after the said process is over, provided the said order is patently illegal, the law does not provide remedy either before or 'after the election process and if the order relates to disqualification of a candidate, the alleged disqualification is floating on surface requiring no further probe."
25. Having considered the decisions of the Supreme Court as above, in our respectful view, the controlling authorities for present purposes are Javaid Hashnii, Ghulam Mustafa Jatoi and Muhammad Nawaz Sharif. As noted, the last two decisions were of 5-Member Benches. In both, the general rule laid down in Javaid Hashmi was affirmed. In our respectful view, that general rule must be regarded as applicable to all disputes relating to or arising out of the election process or after that process has been completed. What has been stated in Ghulam Mustafa Jatoi ought to be regard as an exception to the general rule, and what is stated in Muhammad Nawaz Sharif ought to be regarded as a restatement of the exception. It will be recalled (see para 13 above) that in Javaid Hashmi the Supreme Court expressly observed that the High Court could not in the exercise of its jurisdiction under Article 199 "question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election"
(see Javaid Hashmi at pg. 423). Quite obviously, "the decision" being referred to includes an interlocutory order of the Election Tribunal. The general rule thus clearly encompasses the matter before us, which is challenge to two interlocutory orders of the Tribunal. The only question therefore is whether, and if so to what extent, the matter comes within the scope of the exception? We have carefully considered the point. As restated in Muhammad Nawaz Sharif, for the exception to apply the order must be "patently illegal" and there should be no remedy available in law "either before or after the election process". Now, in respect of an election petition presented under, section 52, there is a remedy available by way of a direct appeal to the Supreme Court under section 67(3). In Javaid Hashmi, the majority dilated at some length upon this aspect and, in our respectful view the existence of this statutory right of appeal is central to the reasoning that led the Court to lay down the general rule. The, general rule is comprehensive. The exception on the other, hand has been stated in narrow terms. The threshold is high: mere illegality will not do; the impugned order must be "patently" illegal. In our respectful view, if an interlocutory order of an Election Tribunal trying an election petition presented under section 52 is patently illegal, that will almost certainly furnish a ground for an appeal to the Supreme Court under section 67(3). In other words, in the present context, there will hardly ever be a situation where the remedy by 'way of statutory appeal will not be available and applicable. Put differently, one of the key elements for the exception to apply will not be found to exist. There will be a remedy available under law. That this remedy is not immediately available, but must await the "final" decision of the Election Tribunal is not determinative. In our respectful view, the manner in which the exception has been formulated, especially as restated in Muhammad Nawaz Sharif, precludes any such conclusion. It necessarily follows that a petition under Article 199 will not be maintainable against an interlocutory order of an Election Tribunal trying an election petition, even if such order is patently illegal. The aggrieved party will have its remedy by way of the statutory appeal under section 67, and must seek that remedy at the appropriate stage.
26. We are mindful of the fact that the foregoing conclusion may mean that an interlocutory order of an Election Tribunal must be allowed to stand and take effect, no matter how perverse or illegal it may be. That was perhaps the apprehension expressed by Nasim Hasan Shah, J. In his dissenting judgment in Javaid Hashmi. In our respectful view, the forceful and comprehensive manner in which the majority judgment stated the general rule, the repeated affirmation of that rule in subsequent Supreme Court decisions (given by larger Benches), and the care taken to narrowly circumscribe the exception carved from the general rule make clear that notwithstanding this- concern and apprehension, the matter must be left for the Supreme Court itself to decide in any appeal to be preferred under section 67(3). If at all the position is otherwise, i,e,, the exception is to cover a patently illegal interlocutory order of an Election Tribunal trying an election petition notwithstanding the existence of the statutory right of appeal, that is something for which guidance can only come from, and be given by, the Supreme Court itself.
27. In our view, the submissions by learned counsel for the present petitioner that the petition is, maintainable cannot therefore be accepted. The division of Article 225 into two parts as submitted by him would lead to an anomalous result. It is of course obvious that a successful candidate .Would no challenge his own election; the election petition would only be filed by .a losing candidate. If Article 225 were not to apply to the returned candidate, he would be able (e.g.) to challenge an introlocutory order under Article 199, but the former Article would apply to the candidate presenting the election petition (and for that matter to the other candidates, all of whom must be co-respondents), who would be unable to mount such a challenge. This anomaly cannot be accepted. It is quite clear from the Supreme Court decisions that Article 225 applies uniformly in all cases. Thus, both the general rule and the exception apply equally to the winning candidate as well as the losing ones. The reliance placed on Jamal Shah v. Election Commission of Pakistan PLD 1966 ,SC 1 does not advance the petitionees case, since this case was examined in the Supreme Court decisions considered above. Furthermore, and with the utmost respect, the reliance placed on the dissenting judgment in Javaid Hashmi is- also inapposite. It is the Majority judgment that is binding, and the general rule laid down therein has been repeatedly affirmed. We may also here dispose of the submiision made by learned counsel for the respondent- No,2, on the basis of Abdul Ghani and another v. Election Tribunal and others 1999 SCM R 1, that in certain circumstances an appeal can be preferred to the Supreme Court under section 67(3) even against an interlocutory order. In our respectful view, the cited decision leads to no such conclusion. In any case, the point was absolutely clarified in Muhammad Asim Kurd v. Mir Lashkari Khan Raisani 1999 SCM R 689.
28. In view of the foregoing discussion, we conclude that in the specific context of an Election Tribunal constituted under section 57 of the 1976 Act and trying an election petition presented under section 52, a petition under Article 199 to challenge an interlocutory order is not maintainable. The matter is covered by the general rule laid down in Javaid Hashmi and does not come within the exception stated in Ghulam Mustafa Jatoi, and restated in Muhammad Nawaz Sharif. The interlocutory orders impugned by means of the present petition can only be challenged in appeal before the Supreme Court under section 67(3) at the appropriate stage. In view of this conclusion, we consider it inapposite to consider the submissions made by learned counsel on the merits of the impugned orders, or to dilate upon the statutory provisions involved. That matter, in our respectful view, properly lies in the domain of the Supreme Court.
29. Accordingly, we hold that this petition is not maintainable. It therefore fails and is hereby dismissed. To say, the interim orders made earlier stand recalled and vacated. There will be no order as to costs.